Appeal from orders of the District Court for the District of Connecticut (T. Emmet Clarie, Judge) continuing the pretrial detention of defendants without bail on the ground of risk of flight. Appellants challenge the constitutionality of their detention, which has lasted for fourteen months. Detention orders vacated and remanded for setting of reasonable conditions of release.
Before: VAN GRAAFEILAND, NEWMAN, and PRATT, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal presents the important issue of whether and under what circumstances the duration of the pretrial detention of a defendant denied bail because he is a risk to flee exceeds the limitations of the Due Process Clause of the Fifth Amendment. The issue arises on an appeal from orders of the District Court for the District of Connecticut (T. Emmet Clarie, Judge), continuing the pretrial detention of Isaac Camacho-Negron and Orlando Gonzales Claudio. Their detention began on August 30, 1985. On the date their appeal was heard, their detention had lasted fourteen months. A trial date has been set for March 3, 1987. The Government estimates the trial will last eight months. If this estimate proves to be correct, the defendants will have been incarcerated for two years and two months before a determination of their guilt or innocence. Without determining a single time period that marks the constitutional limit of pretrial detention in all cases, we conclude that the continued pretrial detention of these defendants, under the circumstances of this case, is unconstitutional. We therefore reverse the orders of detention and remand for the setting of appropriate conditions of release.
Much of the background of the pending appeals is set forth in United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986). That was an appeal by eight defendants, including the two defendants in the pending appeal, from orders of the District Court requiring their pretrial detention pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3142(e) (Supp. III 1985). The eight defendants were among seventeen defendants indicted on August 28, 1985, for the 1983 robbery of a Wells Fargo depot in West Hartford, Connecticut.*fn1 Responsibility for the robbery has been claimed by a group calling itself Los Macheteros (the machete wielders), a paramilitary, terrorist organization dedicated to achieving independence for Puerto Rico. Evidence presented to the District Court in the course of the detention hearings strongly indicates that this organization has been responsible for violent acts of terrorism, including the killing of two United States servicemen in an attack on a bus and the destruction of several Puerto Rico National Guard planes at Muniz Air Base. The indictment alleges that the Wells Fargo robbery, in which $7.6 million was taken, was carried out by Victor Gerena, who is a fugitive. The other defendants are alleged to have played roles in the planning of the robbery or the transportation of the stolen money from Connecticut to locations outside the continental United States.
On the prior appeal, we made several rulings pertinent to the pending appeal. First, we unanimously ruled that section 3142(e) was constitutional in permitting pretrial detention without bail for those found to present a risk of flight. Second, we ruled that the detention of appellants Camacho-Negron and Gonzales Claudio, who had been ordered detained solely because of danger to the community, was unconstitutional. That ruling was made by a divided panel, with the members of the majority relying on different grounds. The writer concluded that the provision of section 3142(e) authorizing preventive detention on grounds of danger to the community was unconstitutional on its face.*fn2 Chief Judge Feinberg concluded that pretrial detention on grounds of dangerousness becomes unconstitutional at some point and that the detention of Camacho-Negron and Gonzales Claudio, which had lasted for eight months at the time of the prior appeal, had exceeded that point. third, we ruled, by a divided panel, that the cases of Camacho-Negron and Gonzales Claudio should be remanded to the District Court for consideration of whether detention was warranted on the ground of risk of flight and that the District Judge should set appropriate conditions of release unless the Judge concluded that no conditions of release would "reasonably assure" that these defendants would appear for trial.*fn3 790 F.2d at 1004.
On remand, Judge Clarie heard extensive argument from counsel on the issue of whether Camacho-Negron and Gonzales Claudio should be detained on the ground of risk of flight. On July 25, 1986, Judge Clarie ruled, on the basis of detailed findings, that both appellants should be detained because of risk of flight and that no conditions of release would provide reasonable assurance of their attendance at trial. Upon a motion for clarification, Judge Clarie informed appellants' counsel that he had not previously determined whether these appellants presented a risk of flight warranting their detention. The District Judge also declined to make additional findings of fact proposed by the appellants. The appeal from these rulings raises three issues: (1) whether the District Court's consideration of risk of flight as a ground of detention violated the Bail Reform Act of 1984, (2) whether the findings of risk of flight are clearly erroneous, and (3) whether the duration of detention on the ground of flight has now exceeded constitutional limits.
1. Appellants contend initially that it was improper for the District Court to consider detention on the ground of flight after our invalidation of the detention orders that had rested on the ground of dangerousness. Appellants argue that the Bail Reform Act requires consideration of all asserted grounds for detention at a single hearing and that the Government waived the opportunity to seek detention on the ground of flight by failing to assert that ground on the prior appeal.
The authority of the District Court to consider detention on the ground of flight was established as the law of the case on the prior appeal. Our prior opinion explicitly directed the District Court, on remand, to "consider whether [the appellants'] detention is warranted on the ground of flight." 790 F.2d at 1004. Moreover, appellants challenged this aspect of the prior ruling by a motion for modification, which was denied by this Court on June 5, 1986. The District Court was obliged to proceed in conformity with our mandate, see Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 92 L. Ed. 1403, 68 S. Ct. 1039 (1948), and there are no extraordinary circumstances that permit us to disregard the law of the case that was established on the prior appeal. Compare United States v. Papadakis, 802 F.2d 618 (2d Cir. 1986) (law of case applied), and Zdanok v. Glidden Co., Durkee Famous Foods Division, 327 F.2d 944 (2d Cir.), cert. denied, 377 U.S. 934, 84 S. Ct. 1338, 12 L. Ed. 2d 298 (1964) (same), with United States v. Fernandez, 506 F.2d 1200 (2d Cir. 1974) (law of case reconsidered).
We had no occasion on the prior appeal to decide whether a district court ordinarily must adjudicate at the first opportunity both grounds of detention urged by the Government. That appeal presented the unusual circumstances where the asserted ground for detention, dangerousness, was ruled unconstitutional. Having made that constitutional ruling, we remanded, directing the District Court to consider the issue it had not reached - detention on the ground of flight. We did not decide on that appeal and need not consider now whether an alternative ground of detention may be adjudicated after an order based on an initial ground has been set aside for reasons of less than constitutional dimension.
2. Appellants next challenge the adequacy of the findings supporting detention on the ground of flight. The basic biographical facts concerning both appellants are not in dispute. Gonzales Claudio is 35, married, and the father of four children, one of whom was born during the father's detention in this case. He has worked all his life as a farmer in a small town in Puerto Rico. Prior to the instant case, he had never been arrested. Camacho-Negron is 39, married, and the father of three children. He has lived all his life in Puerto Rico. He served in the armed forces and saw combat duty in Vietnam. He has been steadily employed and currently owns his own locksmith business. He has no prior arrests.
Based on testimony from an agent of the Federal Bureau of Investigation and wiretap and documentary evidence, Judge Clarie made several findings concerning the appellants' connection with the Los Macheteros organization and with the Wells Fargo robbery. Both are salaried members of Los Macheteros and have been assigned code names in the organization. They have participated in paramilitary operations of Los Macheteros, including the attack on ...